April 2, 2012

[T]he left has taken to mau-mauing the Justices by saying that if they overturn the [Obamacare] mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat....

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them. But what exactly did Gingrich say? The WSJ provides no link or exact quote, but I Googled it for you.

[BOB SCHIEFFER, on CBS’s “Face the Nation"]: [O]ne of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.
I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it. Now clearly since the congress has....

SCHIEFFER: What if he didn’t come? What if he said no thank you I’m not coming?

GINGRICH: Well, that is what happens in impeachment cases. In an impeachment case, the House studies whether or not — the House brings them in, the House subpoenas them. As a general rule they show up. I mean, you’re raising the core question — are judges above the rest of the constitution or are judges one of the three co-equal branches?

Like I said: big difference.

If you won't acknowlege the difference between people criticizing judges in words and Congress physically compelling them, you're not in a good position to credibly explain why striking down the Affordable Care Act should not be understood as judicial activism.

Everyone should know that making a comparison to something that Gingrich said is completely outlandish and makes the person making the comparison seem ill-informed because Gingrich is a joke candidate for President that says completely unserious things.

I'd like to think that lifetime-tenured federal judges, presumably at the top of their field and incredibly intelligent, can resist the kinds of social pressures the legal left are trying to put out there, and do their jobs. Am I the only one left who thinks judges really can be objective?

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them.

Didn't Obama already do that at the SOTUS, sans the literal "dragging"?

I don't understand where this notion came from that judges owe deference to Congress. Newt is right that the legislative, judicial and executive branches are supposed to be co-equals. All three branches swear an oath to uphold the Constitution, so they all ought to be concerned about the constitutionality of their actions. If a politcal party with majorities in the House, Senate and Presidency decides to radically ram through a clearly unconstitutional bill on a purely partisan basis, why is it not the duty of the highest court in the land to strike it down? That the liberal justices refuse to join the conservatives in overturning an unconstitutional bill makes THEM the activists who are violating their oath to uphold the constitution.

I remember reading once that Madisoin and most of the early presidents really only vetoed bills that were considered to be unconstitional. Public policy considerations, and politics, was usually not part of the equation.

It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached.

It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law.

Really? That's what you've got? No mention about Kagan? What if it goes 5-4 to uphold. I suppose you'll have a problem at that point that she, not her spouse, was the solicitor general for the administration previously?

"It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached"

"Really? That's what you've got? No mention about Kagan? What if it goes 5-4 to uphold. I suppose you'll have a problem at that point that she, not her spouse, was the solicitor general for the administration previously?

"It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached"

Of course, a recusal standard like that would hurt female judges much more than male judges, since it is the female judges who are more likely to have a spouse involved in some relevant worldly activity.

Why do lefties make such a display of their inability to see the big picture? It's embarrassing.

It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached.

But the Justice who helped craft the defense of the bill --- SHE shouldn't be recused, eh?

I think there can be an oversight function for Congress with the courts. For instance if a justice based their ruling on foreign law (other than common law or traditional applications as part of the roots of US Law) then there would be a very good case for impeachment and I imagine you would want them to testify and explain their thinking as an interim step to see if impeachment would be warranted.

But we had the instance where FDR extorted rulings out of the court by threatening to pack it with his flunkies and to my knowledge the court has never disavowed those rulings. I have asked about this on various blogs but never seen an answer. Did the court ever repudiate those rulings once it was free of FDR's threats? It seems to me if they have not then there is a very much nontrivial claim to be made that the court is not legitimate since it relies on those artificial precedents.

Either way it seems pretty clear that interference in the court's affairs is not unheard of.

An unrelated item I want to point out is that if the Supremes took a vote on Friday then by now Kagan will have reported the results back to Obama. We should be able to tell very shortly what the vote was based on how the White House reacts. If Obama starts running against the court then we can feel pretty good about things. I suspect we would see a lot of pressure from Obama's proxies and cronies in the media about how illegitimate the court is and how politicized it is.

Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court? This isn't tangential, this isn't a minor component in a larger organization, this was one of the main focuses of Virginia Thomas's Liberty Central.

Beyond a Reasonable Doubt said...It looks as though the Affordable Care Act may be overturned in a 5-4 decision with one of the majority votes being a justice whose spouse has spearheaded, and massively profitted from, the effort to overturn the law. Clarence Thomas's failure to recuse himself is shocking and appalling, and by all rights, he should be impeached.

Hysterical.

But justice Kagan, who giddily celebrated the law's passage, should like totally be seen as impartial.

The shrillness of you clowns is indicative of the lack of an available fact-based or persuasive argument.

"Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court?"

-- You know what other "relevant worldly activities" are probably more closely related to the bill than someone's spouse's actions?

Working to support the bill's passage and serving in the administration that is actually one of the people at the litigation table.

Oops. It's almost like this isn't really about legal ethics so much as trying to win. Maybe there's something else you meant to bring up that isn't easily debunkable?

"Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court? This isn't tangential, this isn't a minor component in a larger organization, this was one of the main focuses of Virginia Thomas's Liberty Central."

Please explain, if you can, without beclowning yourself, how Justice Kagan's conflict of interest either does not exist, or somehow is less than Justice Thomas's "conflict of interest."

Beyond a Reasonable Doubt said...Now who is being embarrassing, Professor? Surely even righties can distinguish an involvement in "relevent worldly activities" and working to defeat, repeal, and/or overturn the very same law that is not before the Court? This isn't tangential, this isn't a minor component in a larger organization, this was one of the main focuses of Virginia Thomas's Liberty Central.

4/2/12 10:39 AM

Kagan aside from being involved with the crafting of the bill as a diabetic would personally benefit from a section of the bill. She using your logic has a direct interest in sustaining this bill. As much or more so than what you posit Thomas with. You have demonstrated without a reasonable doubt that you are a lefty hack and a tool of the machine.

Kagan peed her pants with leftwing glee when the law was shoved down our collective throats in the dead of night against the wishes of the American people, on party line vote - pushed by a corrupt pol named Nancy Pelosi.If anyone needs to recuse herself, it's Kagan.

I heard that if arresting the Federal Judges to get them to recant UnAmerican Decisions doesn't work, then there will no choice except the arrest of a few Con. Law Professors and water boarding ring leaders examples.

Bob Dillon predicted this in Tombstone Blues..something about Gingrich trying to endorse the reincarnation of Paul Revere's horse.

Gingrich's comments were bizarre and deserved to be criticized even more than they were.

Hauling judges before Congress, as he proposes, is a terrible idea, regardless of how much judges may deserve criticism for their judgments. The solution for an out-of-control judiciary is not an even more out-of-control Congress.

This is what Tom Cruise called "galactically stupid." It's like the incredibly stupid "nuclear option" idea cooked up by the GOP under Bush, as a way to get judges past the pesky filibuster.

Because, guess what? The other side gets to do it too; so what did the Dems do? When the pesky filibuster stood in the way of Health Care...why they found a way around it.

(And, yes, I know the cases aren't exact parallels; they don't need to be. The point is, the GOP ought to have kept a consistent position on the filibuster, which is that it's a good thing--which it is, and it shouldn't be tampered with. Even if the Dems still did what they did, then at least you have some credibility protesting it.)

Anyway, back to Gingrich: this is one example of why his winning the nomination was so terrifying to a lot of folks. You never know what might come out of his mouth, or when.

The actual argument is that Ginny Thomas has a financial interest in the case--but what is that? Supposedly, she makes money on opposing Obamacare. Well, wouldn't the demise of Obamacare mean she has to find another profitable cause? So her interest might well be better served by the law being upheld, right?

In fact, doesn't she pretty much have a paycheck no matter what? Either because of her abilities--or, if you want to make the argument that her pay is really due to her marriage, then for that reason. Either way, the outcome of this case would seem to make little or no financial difference to either of them.

The real point the "Thomas-must-recuse" folks want to make--but they don't make it because it's ridiculous--is that Ginny Thomas' strong opinions are taken as proof that Justice Thomas can't be evenhanded.

Is it really necessary to point out how stupid and counter-productive this line of argument is? Let's watch the thread develop and see...

FDR wanted to pack the Court with his flunkies, but his "Court packing" plan was defeated in Congress.

It was a much more mundane law that got him all the Justices he wanted. Congress started up a pension plan that gave retiring Justices a big pension. Within a few years, most of the conservative Justices retired. FDR then replaced them with people he thought would vote his way.

At another point, the president misspoke, almost saying he was sure the law would be overturned. “We are confident that this will be over, that — that this will be upheld,” he said, correcting himself.

Sounds like the President has already figured out which way this is going to go.

Thank you for the history lesson Roger. That clears a lot of things up.

I guess courts get packed slowly one way or the other. But FDR had the advantage of no term limits so he probably had more influence on the judiciary than any other president since the founding of the republic.

If a politcal party with majorities in the House, Senate and Presidency decides to radically ram through a clearly unconstitutional bill on a purely partisan basis, why is it not the duty of the highest court in the land to strike it down?

And today, Barack Obama, president, complained, ""And I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law."

Oh.

So then, under Obama's logic, the duly constituted and passed laws that mandated "separate but equal" schools overturned by the Warren Court in Brown v. Board of Education resulted from unacceptable judicial activism.

Good to know that double-standards can now be cited by Obama as a defense of his probably prospectively unconstitutional law.